Ohio River regulatory commission to vote on not regulating

More than two dozen coal-fired power plants that line the Ohio River stand to get a break from a regional commission that has helped to dramatically improve water quality in the river, the drinking water source for five million people.

Electric utilities and other industries are pressing ORSANCO to end its role in restricting the dumping of toxic wastewater into the river, arguing there’s too much bureaucracy already. Instead, they want the commission to stick to research, and leave anything related to regulation to individual states.

At the same time, the Trump administration has put on hold the U.S. Environmental Protection Agency’s first Clean Water Act rules in a generation to curb toxic wastewater discharges from power plants while the agency reconsiders them.

ORSANCO, the eight-state regional commission, has a long history of setting water standards for hazardous chemicals and heavy metals from coal-burning and other industries, often at more stringent levels than state or federal standards.

But decades of progress toward cleaning up one of America’s hardest-working rivers could be slowed if a proposal that follows the industries’ request to reduce ORSANCO’s authority is approved by the commission, environmental advocates warn. That progress has allowed riverside cities like Cincinnati and Louisville to rediscover their waterfronts for recreation and tourism — even as significant pollution concerns remain.

Climate change advocates also worry that relaxing clean water rules on electric utilities could delay the retirements of coal plants, among the most pernicious sources of carbon dioxide emissions that cause global warming.

The commission received hundreds of public comments earlier this year on the proposal and has scheduled a preliminary vote on June 7. A majority of commissioners support the plan. A YES vote would move the proposal forward for public webinars and further public comment before a final vote.

“The Ohio River is the lifeline for the region, supplying us with drinking water and other vital assets,” said Sean Borst, a medical office manager in Ashland, Kentucky, who was among hundreds of citizens who submitted public comments to the commission.

He and others worry that if the commission is stripped of its role in setting water quality standards, then each state would be left to decide how clean the 981-mile-long river should be, using EPA guidance. There would be no regional recourse if the EPA loosened its regulations. States are now supposed to follow ORSANCO standards even when they’re stricter than EPA’s.

“Having an independent committee whose sole purpose is to monitor, study, and help regulate pollution standards is extremely important,” Borst said. “It is paramount to keep the river clean and viable for future generations.”

A coal-burning plant, every 38 miles

ORSANCO was established by compact in 1948 — well before the establishment of the EPA in 1970 and passage of the Clean Water Act in 1972 — by eight member states: Illinois, Indiana, Kentucky, New York, Ohio, Pennsylvania, Virginia and West Virginia.

At the time, the river was little more than an open sewer. The idea was that a regional overseer was needed to ensure that one state’s industrial pollution didn’t taint the waters of another. ORSANCO has 27 commissioners; each state picks three and the U.S. president appoints an additional three.

The commission sets the overall standard for water quality in the river, determining how much of various pollutants can be in the waterway. The states, using guidance from both the commission and EPA, set their own standards and then issue and enforce permits to about 550 industrial plants that discharge pollution in the river. ORSANCO leaves enforcement to the states or EPA.

The river has long featured a high concentration of coal-burning power plants. Even with some recent retirements, 26 of them are still operating, or one about every 38 miles.

Coal plants are the largest contributors of toxic pollution to U.S. waters, dumping metals such as mercury, arsenic, and lead, according to an analysis by six environmental groups. Long-term exposure to these metals can cause neurological and developmental damage, harm internal organs and cause cancer. Mercury, in particular, concentrates as it moves up the food chain, posing health risks to people who eat fish from the river.

ORSANCO fills regulatory gap for pollutants

The proposal to weaken the commission’s oversight came from some of the states, though the commission’s executive director, Richard Harrison, declined to say which ones.

Some 944 pages of public comments reveal the battle lines. On one side are dozens of industries — steel millers, chemical manufacturers, municipal wastewater treatment operators, and electric utilities — that send effluent into the river. On the other are drinking water utilities and environmental groups.

Then there are people like Robert Mertz, a retired science teacher in Spencer, West Virginia, with his children and grandchildren on his mind, who, like Borst, was among more than 700 citizens who submitted objections.

“It’s our duty to do the best we can to make things better, or at least keep things from getting worse, which seems to be the best we can do anymore,” Mertz said. “All these states are under tremendous pressure from the industries in their area. Somebody has to push back.”

Electric utilities and other business interests, such as chambers of commerce and manufacturers associations, argue that ORSANCO standards are not needed because all states already have to comply with the Clean Water Act.

“Rather than trying to be a regulatory body that duplicates the work of the states,” wrote the Ohio Utility Group, “the utilities think that” ORSANCO can instead “focus on one of its greatest assets to the states — collecting data on the health of the Ohio River.”

The ORSANCO standards are “part of a complex web of regulatory requirements found at the federal, state, and interstate levels,” argued another utility, Louisville-based LG&E and KU Energy. “At best, this results in confusion for the regulated community.”

An LG&E and KU Energy spokesperson said the utility is closing down coal ash ponds and adding wastewater controls to its plants to limit its pollution into the river in line with state and federal regulations.

An ORSANCO analysis helps make the electric utilities’ point by showing a complicated jumble of chemical and metal standards among the states.

But it also reveals that its requirements are not redundant in many cases.

There were, as of 2015, 188 instances in which ORSANCO had set a standard for a pollutant that neither a member state nor EPA had set a standard for. And there were 252 instances in which ORSANCO standards were at least 10 percent more stringent than those of the member states or the EPA, including for arsenic, which can be found in waste from the burning of coal and is known to cause cancer.

Those tougher standards would go away under this proposal.

The ORSANCO survey also found 340 instances where states or the EPA had standards, but ORSANCO did not.

‘Insulation’ from the political process

What’s important, environmental advocates say, is that ORSANCO retains its authority and flexibility to step in and fill the regulatory gap when pollution threats are identified.

There’s an “unmet need to develop standards for emerging pollutants of concern, such as pharmaceuticals and hormone-disrupting chemicals” while keeping the standards we have, said Tom FitzGerald, an ORSANCO commissioner appointed by President Barack Obama.

HEAR Tom Fitzgerald in our latest “Moving Kentucky Forward” podcast.He talks about this very issue toward the end of the show. (Listen)

FitzGerald, a Kentucky attorney and director of the nonprofit Kentucky Resources Council, believes the commission “has lost sight of its mission to some extent.” He also disagrees with the main argument put forward by industry.

“The proposition that ORSANCO standards are redundant is simply untrue,” FitzGerald said. Under the Trump administration, “a proposal to jettison [regional] standards on the assumption that EPA’s standards and implementation of them is sufficient would be laughable, if it weren’t so sad,” he said.

FitzGerald is part of a small group of commissioners that issued a report arguing the regional standards provide “a degree of insulation from the vagaries of the political process.”

People don’t have to look farther than the current EPA for an example of that, FitzGerald said.

When the EPA under the Obama administration adopted its steam electric power effluent rule, the agency said the move would reduce as much as 1.4 billion pounds of toxic metals, nutrients and other pollutants from reaching the nation’s waterways each year.

Trump EPA Administrator Scott Pruitt, however, has put that rule on hold, part of Trump’s promise to revive coal. He said he did so to “protect the environment, jobs, and affordable, reliable energy.”

The EPA did not respond to requests for comment.

Thomas Cmar, an Earthjustice staff attorney with a focus on coal, said it’s not just EPA — the patchwork of often lax oversight in some states concerns him.

“The states don’t have the resources, and they are not looking to take the lead on pressing forward or requiring more stringent treatment and more stringent environmental protection,” he said. “That’s why you have an EPA, and it’s why ORSANCO was created in the first place.”

Prolonging the burning of coal?

More than water quality is at stake with this proposal, according to FitzGerald.

Electric utilities could find that weaker rules might mean they would not have to spend as much money cleaning up power plant wastewater, and that could make it easier to continue burning coal, he said.

The question is whether these changes could make “coal’s position any more advantageous to natural gas,” whose low prices in recent years has been driving utilities to scale back coal burning, he said.

Harrison, ORSANCO’s executive director, said he doesn’t know how the commission will respond to what industries and the public have told them about the proposal.

Regardless of the outcome, Harrison said, “our compact is very clear. ORSANCO would continue to work with its member states to make sure the designated uses of the Ohio River are met. That is not going to change.”

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